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Patent re-examinations are increasingly becoming the weapon of choice for corporate competitors seeking a venue in which to nullify US patent rights, say Eldora Ellison and Jon Wright.

While accused infringers continue to challenge the validity of patents in the US district courts, potential infringers are increasingly seeking relief in parallel by requesting the US Patent and Trademark Office (USPTO) to re-examine their competitors’ patents.

The number of re-examination requests has climbed steadily in recent years, and there are currently more than 2,100 re-examinations pending before the Central Re-examination Unit (CRU) of the USPTO. The USPTO grants requests for re-examination at a high rate in both inter partes and ex parte proceedings (95 percent and 92 percent, respectively).

More than two-thirds of patents undergoing inter partes re-examination and approximately one-third of patents undergoing ex parte re-examination are involved in some form of co-pending litigation.